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HEREBERT CHITEPO LAW SCHOOL

LAW OF SUCCESSION AND ADMINISTRATION OF ESTATES COURSE OUTLINE
LLB321 2023
LECTURER: S. MOFFAT

Students are permitted to take copies of the legislation and unannotated copies of the
course outline into examination.
1. SETTING THE CONTEXT OF THE LAW OF SUCCESSION
 Constitutional provisions
 Division of the law of succession and inheritance and choice of law process
 Application of customary or general law
 Testate and intestate succession
2. PRELIMINARY STEPS
 Registration of death
 Death notice
 Missing Persons Act process of application
3. Organising and protecting an estate
 Registration of a will
 Inventory
 Interim custody of the assets of an estate
4. Testate succession
 Capacity to make a will
 Formalities of will writing
 Effect on will of change in circumstances
 Types of wills
 Relaxation of formalities
 Codicils
 Revocation
 Lack of capacity to make a will
 Interpretation of wills
 The Convention providing a uniform law on the form of an international will.
5. Intestate succession
 General law
 Accrual
 Rights of surviving spouses and children
 Per capita and per stirpes
 Deceased Estates Succession Act
 Articles on sentimental value
 Alternate division of property
6. Administration of estates governed by customary law

 Old law of inheritance

 New law of inheritance

 Steps to take after a person dies who is governed by customary law

 Roles and duties of an executor under customary law

 Deceased Persons Family Maintenance Act

7. Administration of estates
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 Winding up of estate by executor and estate duty

 Registration of estate

 Administration in the Master’s office

 Appointment of an executor

 Security

 Handling of small estates

 Duties of an executor

 Removal of an executor

 Actions brought against an estate

 Master’s Consent to sell property by private treaty

 Final liquidation and distribution account

 Remuneration of executors

 The Estate Administrators Act

8. Specific issues under testate and intestate succession

 Simultaneous death of testator and beneficiary

 Grounds of unworthiness to inherit

 In community of property marriages

 Statutory prohibitions

 Testate succession

 Legacies

 Inheritance

 Collation

 Vesting

 Fidei Commissary substitutions.

LEGISLATION

The following Statutes with amendments will be required for this course.

1. Administration of Estates Act Chapter 6:01

2. Births And Deaths Registration Act Chapter 5:02
3. Burial and Cremation Act Chapter 5:03
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4. Customary Law and Local Courts Act Chapter 7:05
5. Customary Marriages Act Chapter 5:07
6. Deceased Estates Succession Act Chapter 6:02
7. Deceased Persons Family Maintenance Act Chapter 6:03
8. Estate Administrator’s Act No.16 /98 Chapter 27:20
9. Missing Persons Act Chapter 5:14
10. Wills Act Chapter 6:06
11. Zimbabwe Constitutional Amendment Number. 20

READING LIST
Slyvia Chirawu: Principles of the law of succession in Zimbabwe
incorporating the women’s rights perspective

TEXT BOOKS, JOURNALS, WORKING PAPERS

NB The law has radically changed in recent years. Old notes and textbooks should not
be relied on. In particular the South African law is somewhat different from ours and
thus you should only refer to S.A texts when advised to do so .

TESTATE AND INTESTATE SUCCESSION

1. Lee. An Introduction to Roman - Dutch Law 351-55.
2. Dengu-Zvobgo et al Inheritance in Zimbabwe, Law Customs and Practices
[WLSA) 1994.
3. Stewart J. and Ncube W. The legal And Cultural Framework of Successsion on
Zimbabwe WLSA working Paper NO. 6 1992.
4. Stewart J. Inheritance In Zimbabwe: The Quiet Revolution WLSA Working
Paper No. 5 1992.
5. Stewart J.- A Tale of Three Families In A Changing World, Legal Forum Vol 3
No .1 1991 p. 3-9.
6. Stewart et al "The Legal Situation of Women in Zimbabwe" in The Legal
Situation of Women in Southern Africa Stewart & Armstrong Eds (Harare,
UZ. 1990) 165
7. Stewart J - "Who Gets the Money? Some Aspects of Testate and Intestate
Succession In Zimbabwe.
8. The Dependants Live On: Protection of Deceased Estates And Maintenance
Claims Against Deceased Estates Zimbabwe Law Review 1989-90 pp
85-124
9. Sibanda A. Willls ! Are They The Solution to the problem in African Succession
in WLSA Working Paper No. 5 1992 p101-110
10. Munangati N. Testate Succession: Is it Adequately Utilised WLSA Working
Paper No. 5 1992 p 111-124
11. Stewart J. Case Note on Donald v Master of the High Court Legal Forum Vol 3
No.1 1991 p38-45
12. Stewart J. Coping With the Muddle: Choice of law in Intestate Succession in
Post Independence Zimbabwe Legal Forum Vol 2 No. 2 1990 p12-19
13. Chakanetsa C. Intestate Succession to the Matri Estate Case Study of The
Current Problem WLSA Working Paper No. 5 1992 p88-100
14. A Shenje. The Forgotten Victims? African Widows and their Use of the
Provisions of the Deceased Persons Family Maintenance Act WLSA Working
Paper No. 5 1992 p 53-69
15. Mukonoweshuro E. Some Good news Mixed With Some Bad News in WLSA
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Working Paper No. 5 1992 p70-87
16. Stewart J. Playing the Game in Armstrong and Ncube Eds, Women and Law in
Southern Africa (Harare, ZPH, 1987) 85-101
17. Stewart J. A Widows Lot 1983-84 Zimbabwe Law Review p 72-84
18. Cheater A. Investigating Women's Rights and Social Entitlements: Some
Suggestions From Social Anthropology Perspectives on Research Methodology,
WLSA, 1990)
19 Venia Magaya’s Sacrifice: A Case of Custom Gone Awry WLSA 2001
20 A Long Road to Justice: Women & Law in Zimbabwe: Review Commissioned by
UNFFPA – T Jhamba & George Mhlanga 2002

See also International Journals for articles on succession

CASE NOTES ON CUSTOMARY LAW

19. Masango C. Chihowa vs Mangwende: A Critique Legal Forum VOL 5 No. 2 1993
p 55-57
20. Stewart J. Untying the Gordian Knot! Murisa v Murisa: A Little More Than A
Case Note Legal Forum Vol 4 No.3 1992
21. Madhuku L. Is Custom Customary Law? The case of Murisa Vs Murisa S-41 -
92
22. Tsanga A.S. Criticisms vs the Magaya Decision: Much Ado About Something.
Legal Forum Vol. 11, No.2, 1999 pp 94-100
LAW REFORM: Background Documents
23. The Government White Paper On Marriage and Inheritance Legal Forum Vol 5
No.2 p22-26
24. Ncube W. The White Paper on Marriage and Inheritance :An exercise in
Superfluity and Mischief Legal Forum 1993 Vol 5 No.4 p 10-15
25. Madhuku L. The Government White Paper Again :A reply to a reply Legal Forum
Vol 6 No. 2 1994 p.20-24
26. Tsanga A. "Proposed Amendments affecting the Law of Succession". Legal Forum
1997 Vol 9 p.7-11.

Journal Articles
27. Lang A. "Formality v Intention - Wills in an Australian Supermarket" Melbourne
University Law Review Vol 15 1985 p.82-115.
28. Langbein J. "Excusing Harmless Errors in the Execution of Wills: A Report on
Australia's tranquil Revolution in Probate Law" Columbia Law Review 1987 Vol
87 p.1-54
29. Langbein J. "Substantial Compliance with the Wills Act" Havard Law Review
1975 Vol 88 p489-531.
30. Gulliver & Tilson The Classification of Gratuitous Transfers 51 Yale Law Journal
1941 p 1-39.

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COURSE OUTLINE

Part A

PRELIMINARIES
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INTRODUCTION
Problems of Succession in Zimbabwe: The Colonial legacy.
Choice between general and customary law

General Law
Freedom of testation Wills Act Chapter 6:06 s 5(2)
Intestate Succession: The Deceased Estates Succession Act Chapter 6:02

Customary law: Previous Position - Deaths occurring before Nov 1 1997.

. s68 Administration of Estates Act Chapter 6:01
. s13 Customary Marriages Act Chapter 5:07
. s7 Customary Law Application Act Chapter 8:05

Deaths occurring after 1 Nov 1997 - Administration of Estates Amendment Act No. 6
of 1997.

Applicable to General law and Customary Law

Deceased Persons Family Maintenance Act Chapter 6:06

REGISTRATION OF DEATH

1 Preliminary Steps
Registration of Death s20 & s21 of Births and Deaths Registration Act Chapter
5:02
Death Notice : Administration of Estates Act s5

Death Notice(Schedule 2 Administration Of Estates Act)

Contents of Death Notice: The information required corresponds to the various aspects
of the law that have to be considered.

. Name
. Place of Birth and Nationality (conflict of law)
. Names and addresses of the parents of the deceased (identification)
. Age of the deceased (testamentary capacity)
. Occupation of the deceased
. Marital status (relates to many matters - primarily to rights of a spouse, executor)
. Name of surviving spouse(if any).
. Name and date of death of predeceased spouse/s. (order of succession, involvement
of other estates.)
. Place of last marriage. (domicile? checking records)
. Date of decease (of the deceased) (order of succession, applicable law)
. Where died.
. Names of children of the deceased, ages if minors.(right to inherit, identities,
executors)
. If no children and both parents or either parent dead names of brothers and sisters.
(intestate, executors)
. Has the deceased left any movable or immovable property? (form and size of estate,
procedures)
. Is it estimated that the estate exceeds $60 000 in value? (procedures)
. Has the deceased left a will? (testate or intestate)
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ORDER PRESUMING DEATH
All applications can be governed by the Missing Persons Act, however it would still
seems possible to make application to the High Court.

In the original Act application was restricted to presumed deceased persons who had
gone missing due to "terrorist action" but now the Magistrates Court may be
approached with regard to any person who goes missing.

Effect of the Missing Persons Act:

. s5(2) set date of death;
. s10(2)(ii) acts as death certificate;
. s17 revival of the presumed deceased!
. s17(2)(a) doesn't revive marriage; discretion.
. Period of operation.
. Prospective changes.

The Act does not set out the actual criteria by which a person will be adjudged to have
gone missing. Thus it would seem proper to refer to the common law criteria. This
also indicates the general principles to be applied in determining whether someone is
actually missing or presumed dead.

Examples
In re Beaglehole 1908 TS 49
Ex parte Holden 1954 (4) SA 128
Ex parte James 1947 (2) SA 1125

Precautions.
Berger v Aiken 1964 (2) SA 396
Ex parte Alexander 1956 (2) SA 608
Ex parte Engelbrecht 1956 (1) SA 408.

Extraordinary situations.
Ex parte Kruger 1982 (4) SA 411
Ex parte Henman 1952 (3) SA 149

Effect of the High Court order.

ORGANISING AND PROTECTING THE ESTATE

Administration of Estates Act. s6; s8; s9; s10; s11; s7
Wills Act s23 re alteration/concealment/destruction/theft of a will.
s10 Deceased Persons Family Maintenance Act

Inventory
s12-s19 Admin of Estates Act taking of the inventory of the estate.
Interim custody and protection s20-22 Admin of Estates Act.
Also s10 of Deceased Persons Family Maintenance Act but see A Widows Lot 1983-4 Z
L Rev 72-84 on the use of spoliation orders.

Problem of seeking protection

Restrictions on use of property prior to distribution s11 DPFMA.
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PART B

TESTATE SUCCESSION

Did the deceased leave a valid will?

Donation Mortis Causa :-
Alia Gulliver v Marie Sauzier SC 11/91

Types of wills under Wills Act Chapter 6:06 ie after1/1/88

(a) underhand will
(b) soldiers will
(c) will made in time of epidemic
(d) oral will

(a) The underhand will

Formal Validity Of Wills. (See Amendment No. 21 of 1998).

s8(1)(a) Wills Act, except for special classes of wills, a will must be in writing.

What is writing?
Snyder v Snyder 1923 CPD 204,206;
Taylor v The Master 1980 (4) SA 414

s8(1)(b) must be signed by the testator/proxy at the end of each page. Position of
signature!.-
Kidwell v Master 1983 (1) SA 509

What is a page - not defined, seems obvious but what of strange divisions.

Look to the previous act and its interpretation.

Wills and Attesting Witnesses Act:- T and witnesses must sign on at least one side of
every leaf, NB not page.

What is a leaf?
In re Walters (1892) 9 SC 311
In re Roberts 1926 SR 73.

This could also be used in relation to 'page' in the Wills Act. Each leaf must be signed,
if not the will fails. But the process may take place by accident.
In re Trollip 1895 SC 243

Made or acknowledge in presence of two or more competent witnesses. s8(1)(c)

Witnesses must sign/ acknowledge signature on each page before T and other
witness/witnesses. s8(1)(d)
Janda v Janda SC87/97
Harpur v Govindamalll 1993 (4) S.A 781
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Selective application of the provisions of WATWA made possible a
more liberal approach to the correct placing of signatures.
In Re Morkels Will 1938 TPD 432
Ex p Laatae 38 PH(G) 27
Ex p Cartoulis 1974 (2) SA 434,

but see also

Ex P Oosthuysen (hopefully this is now obviated by the WA.

Use of duplicate originals in combination

Ex P Valayden 1937 29 PH (G) 19;
Ex P Beattie 1943 CPD 353.
Leitao v The Master 1981 (1) SA 318

Signed in the presence of not defined but we can look to the previous position:
Burchell v Estate Burchell 1907 14 SC 21,
Shires v Glassocks 2 Salk 688,
Casson v Dade 28 ER 1010,
Goods of Charlotte Peircy 163 ER 1038 blind testator.

Competent witness - s7 Wills Act, Over 16 and competent to give evidence in a court
of law, also must be physically capable of seeing the testator sign.

Special protections
s8(2) where testator does not sign in full additional protections required but court has
a discretion to accept such a will if it is not certified in the required manner.

Initials see definition of sign

(Harpur v Govindamall & Anor 1993 (4) SA 781)

s13 what is a signature. Name and signature may be defective critical point is can the
testator be identified? s13(2)

Ex p Nongawusa 19 CTR 66.

s8(4) witnesses do not need to know that it was a will.

Witnesses need not know that it was a will that they signed, see under the previous
act:
King v Nel 1922 CPD 520, 522.

Similarly an attestation clause has no special purpose. eg;-

Signed by the testator ALBERT

BRAINSTORM in the presence of
us, then present both together ........................
and affixing our signatures
hereto in the presence of one TESTATOR
another and the said testator.
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AS WITNESSES....................
....................

However as was held in Sterban v Dixon 1968 (1) SA 322 its presence or absence is
proof of nothing.

Thaker & Ors v Naran & Anor 1993(4) SA 665(N)

The only issue is the presence of the signatures.

Which under WATWA can be anywhere on the leaf:

Ex p Shepcott 1937 SR 118.

Amendments to wills other than those in 'privileged form.

s9(1)- amendments before execution must be signed but can be signed with initials.
s9(2) amendment after execution requires full signature of both T and witnesses or
further certification although Court has a discretion s9(3).

s9(5)(a) amendments presumed to have been made after the will was executed. s9(5)(b)
location of signature in relation to amendments.

s9(4) amendments that appear to revoke treated as revocation until the contrary is
shown and treated in terms of s15 as revocation.

Incorporation by reference s14 cf Ex p Oosthuysen v The Master 1974 (2) SA 434.

Watson & Ors v Master of the High Court HH76-93.

A will need not be dated Ex p Michaelis 1975 (2) SA 452, although it preferable that it
is.

Donald v Donald 1990 (1) SA 1011 ZS case note in 1991 Legal Forum vol 3, 38

Fraudulent Wills
Mhango v Gunda HH147/2000

Setting aside will

Kashiri v Ncube SC12/99
Venencia Chiminya vs Etsate Late Dennis Mhirimo Chiminya and 2 others HH-272-15

RELAXATION OF FORMALITIES

Zimbabwe: Wills Amendment Act No. 21 of 1998

Gives effect to intention of the testator

South Africa: -
Law of Succession Amendment Act 43 of 1992
Stresses importance of giving effect to the genuine will of a deceased expressed in a
document).
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Cases
Logue & Anor v The Master & Ors 1995 (1) SA 199.

Letsekga v The Master 1995 (4) SA 731.

Ex Parte Maurice 1995 (2) SA 713.

Webster v The Master 1996 (1) SA 34.

Anderson v The Master & Ors 1996 (3) SA 779.

Ex Parte Laxton 1998 (3) SA 238

Kotze v The Master & Another 1998 (3) SA 523

Harlow v Becker NO & Others 1998 (4) SA 639

Ex Parte Williams:In re Williams Estate 2000(4) SA 168

Developments in Australia & the US.

-Emergent Doctrines
0 substantial compliance.
0 dispensing power.

OTHER FORMS OF WILLS RECOGNISED BY THE ACT

(b) Soldiers wills

Special latitude allowed to soldiers; danger, lack of advice, service to the nation.
Formerly no formalities required except proof of testamentary intention, Voet 29.1.1,
Institutes 2.11
In re Leedham 18 SC 450
Engelbrecht v Engelbrecht 1946 TPD 121 must be on active service. Not limited to
soldiers but to apply to ancillary personnel they must die on enemy soil.

Now must be in writing, s10(2) Wills Act

Active service s10, broad definition
Must die on active service or within one year after active service ceases. Admission of
will by Masters Office

(c) Wills in time of epidemic

s11 very like soldiers wills. Meaning of epidemic is vague

Date of death is important to validity s11(3)

(d) Oral wills

s12 reflects the customary practice of oral wills, must be in customary form s12(2)
Estate must not exceed $10 000
S12(6) re position of witnesses
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WILLS MADE PRIOR TO 1/1/88
Above we have dealt with the post 1988 rules as the primary focus and tried to use the
pre 1988 opposition to embellish or explain this. Remember, if the will was made pre
1988 then the Wills and Attesting Witnesses Act applies plus any relevant common
law. Critical point is the date the will was made, if this is available.

Such wills are divided are into two classes:

Underhand Will: Wills and Attesting Witnesses Act Cap 306

Privileged wills

1. Underhand

Underhand governed by s2 of the Wills and Attesting Witnesses Act Cap 306.
In writing, see above.

It shall be signed - signed has a more liberal meaning than in the WA.
Troost v Hohenstein Executor 4 Searle 211.
Proxy can be used to sign Dama v Dama 18 EDC 70, no additional formalities
required.

Must sign at the foot or end thereof of the will. Less rigorous than the present Act, but
see Kidwell v The Master 1983 (1) SA 509. And on one side of every leaf, see above.

"In the presence of" see above under the Wills Act

s4 competent witnesses are 14 and above whereas in the case of the testator he had to
be 14 and she 12. The old Roman ages of presumed puberty and related to the age of
marriage.

2. Privileged Wills pre 1/1988.

The only recognised form that has been abolished is the holograph will. Which must
be in Ts own handwriting
Ex P Rochers Estate 1909 TS 715.

Signature possibly not necessary In re Ross 1958 R & N 303, 306.

Dating In re Ross supra

Estate must be distributed among the descendants of the deceased - legitimate in the
case of a male, all children in the case of a female.

Basson v van Jaarsveldt 1958 (1) SA 418;

Ex P Freer 1966 RLR 669.

Children’s Protection and Adoption Act s64(2)

Oral Customary Wills- probably informally recognised in the distribution process but
had no legal force, but everything is relative.
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Codicils

These are really mini wills and with one exception Codials under a reservatory clause,
are dealt with exactly as wills. For this purpose we refer only to those aspects that are
still distinguishable between the two acts.

However whenever a codicil is made it is normally presumed to be read with the will it
refers to or is pursuant to:

Kleyn v Kleyn 1915 AD 527

Ex p Keay 1944 SR 132
Watson & Ors v Master of the High Court HH-76/93
Codicils can take any one of the accepted forms.
s24(2) Wills Act these are still valid if made pursuant to a will executed before 1/1/88.
But the such codicils are not otherwise catered for in the Wills Act.

Codicils under a reservatory clause.

They are now obsolete except for those made before 1/1/88 or codicils made in terms
of a reservatory clause in a will executed before 1/1/88. Must comply with the
ordinary formalities. If a codicil is valid of itself then it can stand alone even though
the will to which it relates is invalid.

See Donald v Donald (supra)

Van Reenen v Board of Executors 1876 (6) Buch 44
Provided that the codicil is clearly executed in reliance on such a clause it is valid
without compliance with the formalities.

V d Wall v.d. Wall 13 SC 316;

Must rely on the reservatory clause Anderson v Anderson 1917 CPD 7. But can stand
alone Anderson's case supra

REVOCATION

s15 no formalities required, barriers to revocation s15(2)

Forms of revocation -s15(3)
Later will revokes the former to the extent of any inconsistency; this may be total or
partial, see

Ex p Adams 1946 CPD 267

Ex p Bredenkamp 1947 (1) SA 388

Methods of revocation
From the discreet to the violent s15(3)(i)-(iii)

Presumptions
s15(5); s15(6); s15(7)

Aids to interpretation from the previous position.

Pachdakis V Master HH-31-91
Kapota v kapota HC-H-234/89
Prinsloo v The Master 1960(3)SA 882;
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Ex P Hartley 1937 SR 237;
Nel v Talbot 1972(1) SA 207;
Ex P Warren 1955(4) SA 326

Conditional Revocation
s15(5), see the pre 1988 cases:
Donald v Donald (supra)
In re Nortje 1956 (4) SA 180;
Prinsloo v The Master supra
Le Roux v Le Roux 1963 (4) SA 273;
Currie v May 1966 (2) SA 184;
Raabe v The Master 1971 (1) SA 780

But now S15A of Wills Amendment Act No. 21/98 makes its easier.
Revival of revoked wills must be express or implied it is not automatic s19.

Revocation of a Will carried out before 1/1/88.

No formalities required except that it cannot be accomplished by intention alone.
Burning, tearing cutting, lines drawn across the document process similar to the Act
but without further confirmation. Missing wills presumed to have been revoked. Effect
of marriage was to revoke a will (see later )

PRESUMPTIONS AND THE EFFECT OF MARRIAGE AND DIVORCE

Prior to the passing of the Wills Act the effect of marriage was to revoke a will unless
there was a massing or it was superscribed to the effect that it was to remain in effect,
(s2 Deceased Estates Succession Act Cap 302).
Braude v Perlemutter 1969(4) SA 101,
Sanua v The Master 1956 (1) SA 158

Provision for changes in the life and circumstances of the testator which will affect the
position of interested persons in his will.

Applies to wills made before 1/1/88 where the events dealt with occur after 1/1/88
s3(1)(d) & (e)

s16 subsequent remarriage on or after 1/1/88 revokes a will but this is subject to
exceptions:

s16(2) massing in a joint and mutual will

s16(3) polygamous unions
s16(4) the intention of the testator that the will should remain in effect
notwithstanding the marriage.
s16(4)(a)
s16(4)(b)
s16(4)(b)(ii) general saving
s16(5) must consider the effect of intestate succession.

In effect the net result will be in most cases only partial revocation by marriage.

s17 effect of divorce. Previously this was of no significance marriage revoked but not
divorce. Again, the effect is partial not total revocation. The former spouse is removed
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except where it is clear that they were intended to benefit:
s17(1)(a) & (b)
s17(2) effect on usufructs or fideicommissa which in fact are covered by s17(1)

s18 position of children acquired subsequent to the execution of the will. Previously
unless the wording made their inclusion possible, eg
all my children
the issue of .......
or similar expressions, then, the child was not included and had to have recourse to
other solutions such as to invalidate the will or use the provisions of DPFMA.
s18(1)(a) any child born to a woman or the legitimate child of a man.
s18(1)(b) legitimation under general or customary law or acknowledgement of the
child.
s18(1)(c) adoption. Read also with s64(3) of the Children's Protection and Adoption Act
Cap 5:06
Provided that there is nothing to indicate the contrary
s18(1)(i) where no children provided for an intestate portion.
s18(1)(ii) on the basis as other child/children or minimum received by children.

Treated as a legacy not as inheritance, this is important in relation to problems of the

reduction of the estate in favour of the creditors.

All such benefits to children subject to the application of DPFMA s18(3).

CAPACITY TO MAKE A WILL.

It is important to note that in all cases of wills lack of capacity is absolute at the time,
subsequent attainment of capacity does not automatically validate the will. It must be
properly executed.

In essence this has remained unchanged with the Act except as far (i) the matter of
age which is now 16 - s4 Wills Act but see s24(3) on the capacity to amend a will made
before attaining 16.

(ii) the capacity to deal with the guardianship of minor children if the testator was an
African. The African Wills Act, now repealed, restricted the capacity of an African
testator to the deal with the issue of guardianship to those married in terms of the
Marriage Act. This reflected the colonial attitude to issues of a family nature within the
African society.

However it is now clear that anyone can deal with the issue of guardianship of their
minor children in a will and the Wills Act is retrospective in this respect. If an existing
will ie made before 1/1/88 deals with such a matter, even though there was no
previous capacity, it will be valid s3(2)(a).

Otherwise the Act essentially codifies the existing position so it is helpful to use the
earlier cases in interpretation of the Act.

s4 deals with the matter of capacity to make a will, in general it is difficult to establish
that a person lacked capacity unless it relates to age or the person has been certified
as insane.
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Far preferable is to use the provisions of the Deceased Persons Family
Maintenance Act to adjust the distribution of the estate. The result of a successful
challenge to capacity is either an intestate succession or a vf obsuccession in terms of
an earlier will. So one looks to the end result thus, unless the use of an earlier will or
an intestate succession would be preferable. DPFM Act is the method to use.
Lack of capacity is absolute and if one lacked the capacity to make the will no one else
can make it for you:
Hall v Tyndale Biscoe 1973 RLR 110. For an example of provisions permitting a will to
be made for someone who is insane see s. 103 of the English Mental Health Act 1953.

Prodigals.
s4(2) Wills Act and Ex p F 1914 WLD 27

Mental Incapacity
But the incapacity is relative. It depends on the will.
s4(1) Mental capacity as read with s4(3)
The burden is on he who alleges lack of capacity s4(4)
What amounts to lack of capacity:

Evidence of Mental Capacity before the Wills Act would also probably serve as evidence
in terms of the current Act. NB the onus is on he who alleges the incapacity.

1. The simplest situation is that of a person certified as insane as adjudged after

death to have been insane at the time the will was made:

Est Rehne v Rehne 1930 OPD 86, once insanity is established the onus shifts to he
who alleges capacity at the relevant time ie a lucid interval
In Re Kemp (II) Menzies 435

2. However insanity may not be possible to prove but it may be possible to show
that the testator was relatively incapable eg was suffering from an insane
delusion:

Rapson v Putterill 1913 AD 417 (SR)

"an insane delusion is not merely an unfounded though colourable suspicion; nor
even a belief which no rational person could have entertained....It is a persistent and
incorrigible belief of things as real which exist only in the imagination of the testator
and which no rational person can conceive that the testator would, when sane, believe.

Woods v The Master 1942 SR 159, Kethel v Est Kethel 1948 (3) SA 797

OTHER FORMS OF INCAPACITY

a)Failure through Disease or diminished intelligence

Failure through disease or diminished intelligence to understand the testamentary act.
What constitutes such failure?
Parker v Felgate 8 PD 171;
Tregea v Godart 1939 AD 16;
Cloete v Marias 1934 EDL 239 would this test still apply?

Baeck v Brighton 1984 (1) ZLR 186 (SC) has the testator a disposing mind, Smith v
 16
Strydom 1953 (2) SA 799.

b) Drugs And Intoxication

This is a problem because many people are very ill and/or sedated when they make
their wills, often the problems of drugs are compounded by undue influence or some
form of pressure:
Cerfonteins Executors v O' Haire 1873 B 47.
this is often coupled with -

c) Undue Influence
Finucane v MacDonald 1942 CPD 19; Spies v Smith 1957 (1) SA 539
Kirsten v Bailey 1976 (4) SA 109
Problems of meretricious relationships.

d)Relative Incapacity.

Lewin v Lewin 1949 (4) SA 241; see also Baeck v Brighton

INTERPRETATION OF WILLS

What is it that the testator intended by the words that he or the person who drafted
his will used. The problem being that very often the testator if he draws Will himself
uses the wrong terms/concepts or the lawyer misunderstands what was required.

There is an old saying " that the banks of the River Styx are lined with the souls of
dissatisfied testators waiting to greet the judicial personages who have misconstrued
their wills."

Freedom of testation means that everyone is free to do their own thing as far as their
will is concerned, but that must then be put into action.

But the testator is not available to give evidence as to his/her real intention, this can
only be gleaned from the will.

Although things have improved with the passing of the Wills Act as the court can now
look to the intention of the testator where and when problems arise with the
interpretation of the will.

Once again there is a significant difference between the position before 1/1/88 and
that post 1/1/88. Prior to 1/1/88 the rules of interpretation were very strict and the
testators intention had to be gleaned from the words that he used in his will, if these
made sense no extrinsic evidence could be led as to his/her actual or probable
meaning.

PRE 1/11/88
The Golden Rule was that the words of the testator prevailed
Ex. P. Stephens 1943 CPD 397
In Re Reynette James [1976] 1 WLR 161.

If a defect was found in the will then the court would put itself in the testators arm
 17
chair and try to ascertain what he must have meant when the will was drafted,
now it is possible to sit in the armchair from the inception of the interpretation
process and ascertain the testators true as opposed to assumed intention. To see the
previous position look at Povall v Barclays Bank 1965 (3) SA 322 and Troitz v Trotsky's
Executors 1924 WLD 53

A testator in the process of drafting his/her will may create their own dictionary and
this must be used where the meaning is unclear, also with the new approach this will
also be the case if one wishes to prove the testators actual intention differs from his
expressed intention. In Re Taylor [1923] 1 Ch 99.

However post 1/1/88 the matter is governed by s20 and s21 of the Wills Act which are
much more liberal and permit the court to look for what the testator actually meant
rather than his expressed intention. This approach is line with the current English
law. It should now be possible, at least with a post 1/1/88 will to lead extrinsic
evidence of the testators intention to show that the apparent intention of the testator
as expressed in the will was not his actual intention. With earlier wills one was
confined as we have seen to his expressed intention and only if that was subject to a
patent or latent defect could one seek rectification or a different interpretation of the
will.

Marriot v Estate Late Marriot S-224/93. Rubinow and Friedlander 1953 (1) SA 6 the
executor interprets the will as he/she sees fit, subject to there being no objections to
such interpretation.

RECTIFYING A WILL
This is much easier in terms of s20 than it was previously but it has always been
possible where the error is patent.
Ex P Dyer 1950 SA 278 (SR);
Jarvis v Hawken 1959 (2) SA 594 (SR). Certainly the Reynette James situation would
be readily rectifiable with a post 1/1/88 will. See also Hotz v Goodman No. 1994 (2)
SA 186 (C).

Which part of the will predominates? Sometimes there are conflicting clauses in a will
how does one choose which clause predominates? One looks for the clause which
seems to reflect the testators dominate intention Snyder v Snyder 1923 CPD 204,
Master v Meier 1975 (1) SA 1, 10, again all this is now subject to s20 of the Wills Act.

Punctuation is usually rigidly observed but it will be abandoned where it makes a

nonsense this will also be the case with the new act, Bell v Swan 1954 (SA) 543 and
Harper v Epstein 1953 (1) SA 287.
=====================================================================

PART C

INTESTATE SUCCESSION

If the deceased died without leaving a will then the executor must decide which system
of law applies to the estate is it general law, customary law or a mixture of both.

The relevant statutes are:

 18
GENERAL LAW:
Deceased Estates Succession Act Chapter 6:02 (s3)

CUSTOMARY LAW:
if person died before 1/11/97:
Customary Law Application Act Chapter 8:05(s7).
Also if deceased died before 1/1/88 s7 of African Wills Act.
Customary Marriages Act Chapter 5:07 (s13). (But see Chogugudza's case)
Vusiyisile Khanye versus Sibongile Msipha NO and other HB51/05
Charles Hosho versus Maphosa and Other HB69/05
Nathan Hosho versus Lilian Hosho HH491/15

Administration of Estates Act Chapter 6:01 (s68)

See also the general readings on intestate succession.

For deaths after 1/11/97.

Administration of Estates Amendment Act no. 6 of 1997

a) INTESTATE DISTRIBUTION UNDER GENERAL LAW

Once the determination that the estate is intestate or partially intestate has been
made the executor must then determine who the intestate heirs will be. This is always
subject to the provisions of the Deceased Persons Family Maintenance Act. Chapter
6:03

It is very important to note that the beneficiaries share of the estate is calculated on
the basis of the value of the assets as at the date of the death of the deceased.
Increases and decreases in the value of the property after that date are not taken into
account.

Ransumer v The Master 1978 (4) SA 877.

Initial Concepts
(i) No regard is paid to any distribution under a will, In Re McGillivrays Will 1943
WLD 29,
Winstanley v Barrow 1937 AD 95

(ii) Adopted Children rank equally with legitimate children s64 Childrens Protection
and Adoption Act.

(iii)Illegitimate children - Green v Fitzgerald 1914 AD 88. Take from their mother
but not from the father. Potgeiter v Bellingham 1940 EDL 264.
Elsie Bhila versus The Master Of High Court and 4 Others HH-549-15
(iv) Per stirpes ad infinitum when descendants are concerned. Parkins v Parkins
Estate 25 SC 346.

(v) Under the pure RD common law a surviving spouse had no right to inherit,
however she/he was entitled to the automatic half share of the estate on the
dissolution of the marriage, but this has been amended over the years.

If a surviving spouse and descendants are left then:

 19
If married in community s3(a) surviving spouse takes household goods and
effects in joint estate as sole property subject to the provisions of s 4, which provides:

"The entitlement of the surviving spouse in terms of section three to the household
goods and effects of his or her deceased spouse shall not apply in relation to any
property which devolved upon the ancestor and which has peculiar sentimental value
to any other person or persons who but for the provisions of section three, would have
been entitled on intestacy of the deceased spouse to some interest in the property."

Where married out of community s 3(b) take HG&E in deceased spouses estate as
above.

S 3A Spouse of person who died after commencement of Administration of Estates Act

entitled to receive from the free residue of the estate the house or other domestic
premises and household goods and effects which were used in relation to the domestic
premises.

What are household goods and effects:

Effects:
Re Hammersley 81 LT 150.
Manning v Purcell 24 LJ Ch 522.

Where married in community and deceased left descendants: s3(a)(i) Automatic half
share and child's share or specified amount whichever is the greater - RGN 243/77 -
$40 000 - if deceased died before 28/6/91. If deceased died after 28/6/91 then the
minimum amount for the surviving spouse is $300 000 -SI 156/91 -s2.

Where married out of community and deceased left descendants:

s 3(b) (ii) surviving spouse entitled from the free residue to child’s share or specified
amount whichever is the greater - RGN 243/77 $30 000 but if died after 28/6/91 then
SI 156/91 minimum equals $200 000 - s2

If there are no descendants but parents, brothers or sisters then minimum share of
the spouse is - s 3(c) H.G & E + a half share or specified amount - RGN 243/77 $100
000 but if after 28/6/91 then it is $500 000 - s3.

The remainder if any goes to the immediate ascendants and or their descendants if
any, parents and siblings of the deceased. Divide between the parental branches i.e to
brothers and sisters of the deceased.

If only one parent survives - he/she takes the parents share subject to the right of
descendants of the predeceased parent at this level it just brothers and sisters of the
intestate, if no brothers and sisters then surviving parent takes.

If no parents or siblings then surviving spouse takes the entire estate, s 3(c)

If there is no surviving spouse then the estate goes to the descendants, if any.

In the absence of descendants then parents/brothers and sisters as above, but not as
provided for in the Act but as per Political Ordinance, this is often the case with the
 20
estates of unmarried minors.

If only one parent survives the intestate then one must look to other eligible relatives
who are related to the intestate within the fourth degree through the predeceased
parent per stirpes - Bresler v Kotze 2 Menzies 444.

If there are no surviving parents then the estate is divided in half: (this will operate
against the surviving spouse only as far as the siblings of the deceased and no
further).Half to maternal and half to the paternal side and devolves through the lines,
first look down through their descendants and then climb up.
Wynnes Estate 20 CT 289
In Re Gordons Estate 1909 NLR 325.

If there is no spouse, no descendants, no surviving parents or their descendants then

look to the descendants of grandparents, divide the estate in half as above -
Raubenheimer v van Breda's Executors (1880) Foord's 111 but see Caney v Johnson
1928 NPD 13
( See also re Severed Bed 1944 SALJ 448.)

If no grandparents and their descendants then climb to the great grandparents and
then down, if no one on one side, either don't exist or are debarred then all devolves on
the remaining side.
Ex P. Spangenberg 1907 24 SC 288.

Total failure on both sides goes to the fiscus

See also s 5 as to the rights of the intestate heirs to make other arrangements re
property left in undivided shares.

b) CUSTOMARY INTESTATE SUCCESSION.

Distribution of Estates under the Administration of Estates Act No. 6 of 1997.

-To whom does the new law apply
-Determination of whether customary law applies
-Meaning of surrounding circumstances
-Determination of Dispute as to whether customary law applied
-Steps to be taken after death of deceased
-Procedures in event of disagreement
-Position of heir
-Executors responsibilities
-Nature of plan
-Who are beneficiaries
-Dealing with the plan
-Master's duties regarding conflicts
-Position of dependants

Analysis of prospects of success of new law.

Prior to the passing of the Administration of Estates Amendment Act of 1997 one had
increasingly to regard the general pattern of intestate succession in Zimbabwe as a
 21
matter of selecting from the available options, those that were best suited to the
needs of the dependants of the deceased person. Whereas in testate succession it is
the testator who prescribes the directions to be taken, in intestate succession the
move was more towards looking to see how flexible the system was with regard to the
individuals concerned and working from there. It was technically possible to obtain
through a mix of customary law, statute and common law almost the entire estate for
the surviving spouse of a deceased African who died intestate.

The inter mix was made up of s68 of Administration of Estates Act; s 7 of the
Customary Law Application Act and the limited use of s 3 of the Customary Law
Application Act where the matter was not already dealt with by statute.

PREVIOUS POSITION RE: DEATHS OCCURING BEFORE 1/11/97.

Immovable property
Komo and Leboho v Holmes 1935 S.R 86
S 7 Customary Law Application Act

Africans married under civil law

Duma v Madidi 1918 S.R 559
S13 Customary Marriages Act but now affected by
Majawo v Chogugudza SC 142-92

Foreign marriages
Bennet N.O v Master of the High Court 1986 (1) ZLR 127
Mazula v Kapolo SC 84/94

Interpretations of Who is heir at customary law

Vareta v Vareta SC 126-90
Moyo v Moyo 1990 (2) ZLR 81
Mwazozo v Mwazozo SC 121/94
Chihowa v Mangwende SC 84/87
Murisa v Murisa SC 41/92,
Magaya v Magaya SC 210/98
Mahlangu v Khumalo SC 46/99
Mazani v Mazani SC48/98
Line of Succession
Madzimbganyama v Ndambakuwa SC 50/93

Ascertainment of relevant customary law

Matambo v Matambo 1969 (3) SA 717.
Mandondo v Mkushi 1985 2 ZLR 198

The duty of the magistrate in terms of s68(2)

Antonio V Antonio SC 139/91
Murape v Murape SC 32/93

Capacity in which heir inherits and Duty of heir

Seva and others v Dzuda SC 131/92
Masango v Masango SC 66/86
Mbwadzawo v Mude SC 237-95
 22
Mbawala & Anor v Mashonganyika & Ors S-95-96.
Muroyiwa v Muroyiwa & Registrar of Deeds SC11/99

Claims re contributions
See dicta in Antonio v Antonio and Murape v Murape supra
Masimirembwa No. in re Est. Chipembere v Chipembere HH-22-95

Issues governed by semi autonomous social fields

Municipal Housing
Nyoka v Nyoka HH 101/94
Zichawo v Zichawo and City of Harare HH 116/94

Insurance policies
(UCLU)Chawanda v ZIMNAT Insurance
Katiyo v Standard Chartered Bank HH39 /94

The Deceased Persons Family Maintenance Act.

Analysis
=================================================================
PART D

ADMINISTERING AN ESTATE.

Procedures
Administration in the Masters office and Administration in the Magistrates Courts
Customary Law : (see Inheritance in Zimbabwe Law Customs and practices p214-237
for position prior to amendment).

Appointment of an executor, nothing can be accomplished by for on behalf of a

deceased estate until an executor or representative has been appointed.s23 of Cap
6:01. plus s24, s25, s26, s27

Power of assumption s28, (adding executors where needed with out recourse to the
formal procedures. Replacement of, or appointment of new executors s29

When Executor appointed, Masubey v The Master & Anor HH-91-93

Revocation of letters of administration s30 - Renunciation of letters of administration -
Drummond v De Haast,
De Haast v Drummond SC 122/90, SC 219/91 and also if you are enjoying the family
in fighting see HH 35/91

Requirement of security s. 31 source of funding for security, Anderson v Anderson's

Executors 1920 TPD 67

Dealing with small estates, under $60 000, s32 and s65 and s66, simplifies and
reduces cost, can be a good move to make in the early stages, much faster.

Duties of the executor

S. 38 lodging of an inventory, s. 39 penalties, independent valuations s. 40.

 23

S. 41 integrity of the estate to be preserved, see also s.10 of the Deceased Persons
Family Maintenance Act

NB no one except as provided for in s 41 AEA or s10 DPFM other than the executor or
duly appointed representative can deal with the property in a deceased estate.

Creditors must be ascertained s 43, see also s. 44 and also the order of preference in
the estate as set out by s. 46. Proof of claims S.47 and the problems of insolvent
estates.

Legal Position of the Executor

"The executor is not a mere procurator or agent for the heirs but is legally vested with
the administration of the estate." Meyerowitz

His position is a fiduciary one

Lindberg v Giess 1957 (3) SA 31,
Clarkson v Gelb 1981 (1) SA 288.

The Master of the High Court is empowered to call on the executor to vindicate his
administration, S116 of AEA, see also Alcock v Swartz SC 167/91 This could be done
before the amendment but involved court action by the aggrieved party.

If the Master finds that the executor has been guilty of maladministration he can seek
the removal of the executor s 117, if the executor is removed he remains liable for the
various acts of his administration.

The executor must be made a party to any action brought by, for or against a deceased
estate
Klepman v Law Union and Rock Insurance 1957 (1) SA 506.

Only the executor or other duly appointed representative of the estate can represent
the estate, Nyati v Minister of Bantu Administration 1978 (3) SA 224. See also the
provisions of the Prescription Act.

Effect of death on Proceedings Reserve Bank v Siwawa SC 25/99

It is the executor who must realise and pursue the assets of the estate,
Alcock v Swartz SC 167/91
Lockhart's Estate v North British and Mercantile Insurance 1959 (3) SA 295

No one else can pursue the matter, if the beneficiaries or creditors dispute the course
of action undertaken by the executor they must seek his removal either through the
court or via the Master they cannot take the matter into their own hands.

Segal v Segal 1976 (2) SA 531

Bonsma v Meaker 1973 (2) RLR 16

The executor is bound to realise the estate as directed by the testator Welmgoed v The
Master 1976 (1) SA 513
 24

If there are no such directions then the executor need only realise the assets to the
extent required to satisfy the creditors Mahomed v Stephenson 1971 (1) RLR 229

However the executor must consult with the beneficiaries before dealing with the
assets, if the beneficiaries are able to reach a compromise as to how to fund the
liabilities of the estate the executor is bound thereby George Municipality v Freysen
NO 1976 (2) SA 945. If assets in the estate need to be realised then unless the will
otherwise provides they must be dealt with at a public auction the only exception is if
this is not the normal way in which to deal with such assets.

Master's consent to sale by Private Treaty

Ndoro v Katemba No & Ors HH-163-94.

In general the executor must wind up the estate as soon as possible and cannot,
unless the will or a court so provides, continue to run businesses etc, Ex P Huelin
1959 (4) SA 85.

The executor must open a separate account for the estate and must ensure that the
assets of the estate are kept separate from his own, Ex P Steele 1949 (2) SA 157.

If the executor is guilty of fraud then the security provided can be called in, however if
the executor has perpetrated a fraud in his representative capacity against third
parties the estate will not be held liable Price NO v JBS 1979 (2) SA 262,

Final liquidation and Distribution Account Van Niekerk v Van Niekerk SC 47/99.

Right of Public to inspect account

Hartnack v The Master & Anor S-49-93
But see S 5 of Administration of Estates Amendment Act No. 9 of 1995.

NB he is not an agent.

Once the executor has collected the estate together and ascertained who the creditors
are and provided for their claims the next task is to provide for the distribution of the
estate among the beneficiaries either testate or intestate, or as can happen a partially
testate and partially intestate succession can take place. In the event of such
occurring the testate distribution precedes and is independent of the intestate
distribution. In Re Mc Gillivrays Will 1943 WLD 29.

If the distribution is a testate one, wholly or partially, then the executor must
determine the effect of the provisions of the will Rubinow v Freidlander 1953 (1) SA 15.

PART E

SPECIFIC ISSUES UNDER TESTATE AND INTESTATE SUCCESSION

WHO MAY INHERIT - CAPACITY

This is a matter of mixed statute and common law.

Who may inherit in an intestate succession is governed by common or customary law,
while who may inherit from a testate estate is now largely a matter of statute.
 25

1. SURVIVORSHIP IS AN ESSENTIAL PREREQUISITE.

Ex. Graham 1963 (4) SA 145;

Greyling v Greyling 1978 (2) SA 114;
Standard Trust v Master of the High Court 198? (1) SA 192

However substitutes and alternatives are possible in a testate succession they are
automatic in an intestate succession. In testate succession the final default is
intestate.

2.UNWORTHINESS
In general Taylor v Pim 1903 NLR 484, no one ought to profit from his own misdeeds:

INTESTATE
(i) He who has brought about the death of the deceased is deemed unworthy;

Voet 34.9.6.;
Calderwell v Erasmus 1952(4)SA 43,
Crippen's Case [1911] P 108.
Quaere negligence/dolus

Possible exceptions
Ex P Steenkamp 1952 (1) SA 744
Wessels v Lubbe 1954 (2) SA 225
Taylor v Pim (supra),
Ex p. Von Zell 1953 (1) SA 122.
Nell v Nell 1976 (3) SA 700,
In re Giles [1971] 3 WLR 640, English Forfeiture Act 1982 s 2 (1)

(ii) Blameworthiness
Ex P Meier 1980 (3) SA 154
Gaffin v Kavin 1980 (3) SA 1104
Mental Disorders Act 23/76 s. 28

TESTATE: Who may inherit (statutory provisions)

s. 6 of the Wills Act, (there is inconsistency between testate and intestate
succession).Witnesses s. 6 (2) (a) to the will/amendment
Signer of a will for T. s.6 (2) (b) to an amendment
Writer s 6 (2) (c)
Certifying official s. 6 (2) (d)

Where testator is a minor under disability s. 6 (2) (e) (i) & (ii)
Spouse or child of any of the above s 6 (2) (f)

Any person claiming through one debarred in terms of the above s. 6 (2) (g).
Use of fraud, duress or undue influence s. 6 (h) (i) & (ii) cf Taylor v Pim (supra) for pre
Wills Act position

Deliberate concealment or destruction of will or copy of a will s. 6 (2) (i), does it have to
be a valid copy (duplicate original) or merely a copy of a valid will.
 26

s. 6 (2) (j) Unlawful and intentional killing of testator or

(i) any person from whom T has inherited: parent, spouse or child of T.

(ii)any person through whom the benefit is derived

(iii) Does the killing have to be for the purposes of succeeding?

General provision where there has been an unlawful act or omission causing the
benefit to be conferred s. 6 (2) (k)

EXCEPTIONS
s. 6 (3) One may receive a benefit conferred in a will if the benefit does not exceed ones
intestate entitlement if one was :

(a) witness
(b) signer
(c) writer
(d) minor under disability
(e) relatives of those involved in the execution process
(f) persons claiming a benefit through persons listed above

Persons not entitled to a benefit by reference to intestate succession may still succeed
in terms of s. 6 (4) if the benefit is confirmed by the testator.

s. 6 (5) the burden of proof is on he who alleges the disqualification to prove it.

s. 6 (6) appointment as executor, administrator, or guardian is treated as a benefit

except for the purposes of paras (e) and (g) of s. 6 (2).

s. 6 (7) a body corporate is not debarred from inheriting.

PRE 1/1/88 POSITION

Position pre wills Act and as it applies to beneficiaries to wills made prior to 1/1/88.

Witnesses debarred from taking a benefit, Wills and Attesting Witnesses Act Cap 306.
Bravda v Bravda [1967] 2 AER 1233 and [1968] 2 AER 217 see the amendment to the
English Wills Act.
Louw v Engelbrecht 1979 (4) SA 841
Ross V Caunters [1979] 3 ALL ER 580

Writers, including those merely filling names etc in printed or prepared forms Ex P
Searle 1941 SR 92, debarred except where benefit equal to or less than intestate
portion, In re Barrables Estate 1913 CPD 364. Or where T superscribes the will to the
effect that the benefit is to be effective Gunn v Gunn 1910 TPD 423.

Or some other satisfactory means of confirmation is used.

What are other satisfactory forms of confirmation, this is not made clear by the Act,
 27
but the old common law position gives some indication as to what is likely to
be treated as acceptable.

See the wording of s 6 (4)

"a person who.(series of classes)..may receive a benefit conferred by or in terms of a
will if after the will has been made the testator confirms the benefit, whether by
written endorsement upon the will or in a codicil or orally or in any other manner that
clearly shows the testators intention to confer the benefit"

To date the satisfactory means of confirmation have been somewhat diverse and
inconsistent:

Ex P Thole 1968 (1) SA 155;

Connolly v Goudge 1946 NPD 661;
Thienhaus v The Master 1938 CPD 69

Remember that this liberalisation now applies not only to writers of wills but also to
witnesses, however the risk still remains of an action for damages if a potential
beneficiary is debarred because of a professional oversight Ross v Caunters (supra) it
is of course always better to get totally disinterested persons to act as witnesses.

LEGACIES

Bequests can come in two main forms : legacies and inheritances.

A legacy is a disposition by which the testator gives the whole or a share in property
other than the residue of the estate, to some person real or juristic.

Legacies are either specific or generic. Legacies as with inheritances can be of

corporeals or incorporeals, but only real rights can be bequeathed, Beyers v Beyers
Estate 1921 CPD 644

There are certain standard presumptions that attach to legacies :

Bequest of property of another

Est Brink v Est Brink 1917 CPD 612
Attridge v Lambert 1977 (2) SA 90.
Executors of Joseph Cross v Martha Cross 14 EDC 87
Consider the effect of the Wills Act. (s15 (4))

Where the testator leaves property owned by another the matter must be carefully
investigated except where the property is owned by a legatee or heir then it is
presumed that the testator wanted some sort of an exchange.

Election/adiation
Legatee is put to his election
Receiver of Revenue v Hancke 1915 AD 64, 87,
Secretary for Inland Revenue v Roadknight 1974 (1) SA 253.
Where a benefit is unconditional acceptance is presumed Crookes NO v Watson 1956
(1) SA 278, 298
 28
If a beneficiary repudiates, then he is treated as dead for the purposes of the
disposition of the estate Emmanuel v Est Rice 1968 (3) SA 502

Jointly owned property, it is presumed that T is only disposing of his own share, but if
this is disproved then the executor will have a duty imposed on him to try to obtain
the property, T may even give such an instruction.

If T mentions property in a will that is subject to a burden, eg mortagage then unless

the contrary is shown, and that will be much easier now, the property is to be handed
over free of the burden.

One can even leave property of the beneficiary to the beneficiary, but this would
normally be meaningless unless the property in question is burdened in some way
when it is presumed that what was intended was that the burden be relieved by the
testators estate. Balcomb v Est Balcomb 1937 NPD 289, 294

A legacy can also be subject to a bequest price, that is that the testator requires that a
legatee pays into the estate before he takes his legacy, again this is subject to adiation,
the heir is put to his election. Est Becker 23 SC 488

ABATEMENT
What can also happen is that the estate is too small to meet all the legacies. This of
course means that the heirs will get nothing at all, they would have recourse to DPFM
if qualified.
In such a situation the legacies will abate, that is they are reduced on a pro rata basis.

The legatee is put to his election, he can elect either that the legacy is reduced or that
in order to retain the integrity of the bequest he can pay the deficit into the estate.
George Municipality v Freysen 1976 (2) SA 945. However he can also elect that the
property in the estate be sold and that he takes the realised price less the amount that
must be contributed to the estate.

The easiest way to understand abatements is by looking at worked examples:

John leaves an estate valued at
$220 000.
Proved debts of
$ 80 000.
The legacies provided for amount to $200 000.
Clearly all the legacies cannot be satisfied, so they must all abate.
Calculation
Estate
$220 000
Legacies
$200 000
Residue
$ 20 000
Proved debts
$ 80 000

There is clearly not enough to meet the needs of the creditors and any heirs will be left
out unless they use DPFM
 29
Debts
$ 80 000
Residue
$ 20 000
Shortfall
$ 60 000

Legacies must abate

Legacies
$200 000
Deficit
$ 60 000
Left for distribution
$140 000

Must be a proportional abatement

Let us say that there are 3 legacies one of $100 000, one of
$20 000 and one of $80 000, they could be pecuniary or of property.

(1) $100 000 (original value of the legacy) X S60 000 (total deficit)
$200 000 (total value of legacies)

Ie $100 000 X $60 000 = $30 000 (deficit)

$200 000

Thus the legatee will get $70 000, which can either be paid in, deducted or the
property sold and the remainder handed over.

Work out the figures for the other legacies using the formula.

It may be possible to show that the testator intended that a particular legacy should
not abate or more correctly that it should only abate as a last resort, these legacies are
known as prelegacies and only abate when there is nothing else left.
Whether a legacy falls into this category is a matter of the interpretation of the will
Levy v Levy's Executors 1934 CPD 107
Moodies Executors v Moodies Heirs 9 SC 230

Legacies Can Also Fail:

s 15 (4) of the Wills Act provides that a legacy is revoked if the subject matter of the
legacy is voluntarily disposed of by the testator, unless the contrary is proved. This
merely reflects the common law position, here ademption of a legacy is treated as a
form of revocation of a part of a will.
Barrow v The Master 1960 (3) SA 256,
Attridge v Lambert 1977 (2) SA 90,
Donald v Donald (Supra)

If the legatee predeceases T or refuses the legacy then the legacy fails unless there is
provision for substitution in the will.
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If the subject matter of a specific legacy is lost or destroyed then the legacy fails, but if
it is a generic legacy then the executor has a duty to try and obtain the property or pay
over its market value. Such a legacy would only fail if the property in question no
longer existed.eg 50 cows.

If the subject matter of a legacy is bequeathed to two or more persons then they are
treated as joint legatees and share the property however with the Wills Act it should be
easier to show the testators true intention Levitas v Levitas 1962 (4) SA 385

Impossibility Ex P Adams 1964 SA 135, Alexander v Perdicologou 1966 RLR 305

INHERITANCE

"An heir is a person who succeeds to the estate or a fractional portion of it after all the
debts and legacies have been paid, that is, he succeeds to the residue of the estate,
which consists of what is left after provision has been made for the payment of the
liabilities of the estate and all bequests (legacies) have been satisfied." Meyerowitz

Heirs take their share of the estate either per capita or per stirpes and further it may
be necessary to discover in the event of the failure of an heir whether there is to be jus
accrescendi or whether the residue goes as on intestacy.

It all depends on the wording of the will and then its interpretation, but where
members of the deceased family are named as heirs and the substitutions are made
the primary presumption is that the testator intended that the distribution be per
stirpes, as is the case in an intestate distribution under general law.
On the other hand the intention may be that the distribution is to be per capita. i.e. by
head count at the appropriate level. Wannenburg v Le Roux 12 SC 383, Estate
Delponte v Fillipino 1910 CPD 334.

Accrual: Jus Accrescendi

Is the appointment to a share or to a specified fraction, can the share of one party be
redivided or is there an intestate succession.Winstanley v Barrow 1937 AD 75
Lello v Dales 1971 (2) SA 330 but all subject to s21 of Wills Act.

Care must be taken with wording, share and share alike Kelly v Scallan 1916 CPD 20

COLLATION

There is a presumption that when a testator leaves a share in the residue to children
that it is intended that they be treated equally, thus even what they may have received
during life can be taken into account in computing the share of the estate, this is
known as collation:

Heirs who are descendants can be compelled to collate, unless the testator has
indicated to the contrary, Jooste v Joostes Executors 1891 SC 288. Moneys, property
given that could be regarded as a predisposition of the estate is subject to collation, as
are loans. Even prescribed debts are covered Thom v Wortham 1962 (4) SA 83, as are
expunged debts Steyn Executors v Steyn (1894) 11 SC 55.
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Who must collate:

Heirs who are descendants, Est van Noorden v Est van Noorden 1916 AD 175, there is
even liability for the debts of ones predecessors, Thom v Wortham (supra) liability for
debts of spouse in a marriage in community.

In whose favour? What must be collated?

Est van Noorden (supra), money for education, support etc need not be collated.

Heir is put to his her election, ie is it worthwhile collating. But there is a problem and
this also applies to legacies one must accept all the provisions of a will you cannot
pick and choose. If you accept the benefit then you must collate.

Vesting
When does the bequest vest in the beneficiary?
CIR v Crewe 1911 AD 679

What is the right that is there at the deceased's death, how is the right dealt with by
the terms of the will.
11 Restrictions on exercise of rights conferred by section ten
The rights conferred by section ten shall—
(a) not derogate from or prejudice in any way the rights of any mortgagor, landlord,
creditor or any other person whomsoever which existed prior to the date of death of
the deceased person;
(b) terminate upon completion of the administration of that portion of the deceased
estate to which those rights relate;
(c) be subject to the requirement that the surviving spouse or child concerned shall
occupy or use the property in question without detriment or neglect, reasonable wear
and tear being excepted.
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PART F

CONDITIONAL BEQUESTS AND SUBSTITUTIONS:

Hand out will be given for this section

A testator is at liberty to impose conditions on a bequest to a beneficiary, be that a

legacy or an inheritance. The conditions may either postpone or suspend the vesting
of bequest or certain of the rights in that bequest.

Providing that the condition that is imposed is lawful, not contra bonos mores and
possible to put into operation then it will be enforceable and will have the effect until
the condition is satisfied of varying the disposition of the estate

Types of conditions
 Faith Clauses
 Prohibitions against marriage
 Fideicommissary substitutions
 Usufructs
 Testamentary trusts
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